Schedule 3 of the Telco Act and the Determination
151 As noted earlier, clause 6(1) of Schedule 3 provides that a carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if, among other things, the facility is a low-impact facility as defined by clause 6(3). Clause 6(2) amplifies the rights and powers conferred by clause 6(1) by stating that, if clause 6(1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity enter on, and occupy, any land and do anything necessary or desirable for those purposes on, over or under the land. Clause 17(1) stipulates that, before engaging in such activities in relation to any land, a carrier must give written notice of its intention to do so to the owner and/or occupier of the land. Subject to exceptions which are not presently relevant, clause 17(4) stipulates that the notice must be given at least 10 business days before the carrier begins to engage in the activity. Thus, it is usually the case that it is necessary to determine whether a facility is a low-impact facility before the facility is installed and before it is operational.
152 There are various kinds of low-impact facilities that are described in the Schedule to the Determination. The descriptions contain a number of different descriptive conditions, where the conditions are of different kinds or characters. Some of the conditions relate solely to the physical features of the facility. For example, Item 8 of Part 1 describes a radiocommunications facility which has a separate antenna not more than 1.2 metres long and a cabinet that does not exceed 1 cubic metre in volume. Some of the conditions refer to the function of the facility. For example, Item 10 of Part 1 refers to an in-building coverage installation to improve cellular coverage to mobile phone users operating inside a building and wholly contained and concealed in a building. Some of the conditions refer to the use of the facility. For example, Item 8 of Part 3 describes external building connection equipment the substantive volume of which is not more than 0.59 cubic metres and that is, or is to be, part of a national network used, or for use, for the high speed carriage of communications, on a wholesale-only and non-discriminatory basis.
153 The present proceeding is concerned with Item 6-1 which describes public payphone cabinets that satisfy certain conditions. It is convenient to repeat the description:
Public payphone cabinet or booth:
(a) used solely for carriage and content services; and
(b) not designed for other uses (for example, as a vending machine); and
(c) not fitted with devices or facilities for other uses; and
(d) not used to display commercial advertising other than advertising related to the supply of standard telephone services.
154 It can be seen that the above description contains four conditions, with the conditions having different characteristics: conditions (a) and (d) each concern the use of the payphone cabinet; condition (b) concerns its design; and condition (c) concerns the devices or facilities with which it is fitted. In context, each of the conditions conveys the future tense in the passive voice. The phrase "to be" or "that will be" (or the negative forms "not to be" or "that will not be") is implied before each of the verbs in each of the conditions (used, designed and fitted) because it is necessary to know whether a facility meets the description before it is installed. The use of the past participle form of the verbs in each of the conditions (used, designed and fitted) combined with the future tense conveys a future passive voice. Logically, the relevant future time is the time when it is expected that the facility will be installed and the description is directed to the facility as it is proposed to be installed. The foregoing observations are consistent with the principle, referred to by the primary judge (Reasons [67]), that the Determination "is addressed to practical people skilled in the particular trade or industry" and "ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of [its] various provisions, such as might be appropriate in construing sections of an Act of Parliament": Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 933-934; [1963] 3 All ER 180 at 183 (Lord Reid); DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; 260 FCR 447 at [94] (Perram, Wigney and Lee JJ).
155 It is necessary to focus on the "use" conditions, as the relevant condition for present purposes is condition (d). Ultimately, how something is to be used is a question of fact. Contrary to Telstra's submissions, the decision of the High Court in Hutchison does not reject the intention of the user of the proposed facility as a relevant consideration in applying the descriptions in the Determination.
156 Hutchison concerned the interaction between Schedule 3 of the Telco Act and the Development Act 1993 (SA), the South Australian planning law. Hutchison was a licensed carrier under the Telco Act and wished to install "downlink sites" for its mobile telecommunications network. The downlink sites were installed on electricity poles (known as stobie poles) owned by the South Australian electricity distributor, ETSA. That was done pursuant to an agreement entered into between Hutchison and ETSA. As part of the installation, and in accordance with the agreement, ETSA replaced a number of the stobie poles on which the downlink sites were installed at the cost of Hutchison. Those poles (and downlink facilities) were within the municipal boundaries of the City of Mitcham. The City of Mitcham argued that the erection of the poles with the downlink facilities required planning approval. Relevantly for present purposes, one of the questions considered by the High Court was whether the new stobie poles with the downlink sites were "facilities" within the meaning of s 7 of the Telco Act, specifically whether they were "for use … in connection with a telecommunications network". The Court answered that question in the negative, stating (at [85]):
[85] However, merely establishing that ETSA erected stobie poles at the relevant sites in order to permit installation by Hutchison of its facilities does not necessarily demonstrate that those poles were intended for such use. This is because the definition of the term "facility" in the Telco Act requires that attention be directed, not to the motive for the installation of a structure or thing, but the function which that structure or thing serves or was designed to serve.
[86] The definition of the expression "telecommunications network" has previously been set out in these reasons. That definition contemplates a "system" or a "series of systems" engaged in the carrying of communications by means of guided and/or unguided electromagnetic energy. In attempting to characterise the function which was served or sought to be served by the replacement poles, the question thus arises: were the replacement poles intended for use in connection with a "system"?
[87] The Case Stated indicates that the poles were replaced in order to meet the structural demands of carrying such facilities as the three panel antennae, the microwave dish and the mounting pole which together form part of a downlink site. In other words, the replacement poles were designed, in part, to accommodate the physical act of installing telecommunications equipment. However, there is nothing to suggest that, as such, they were intended to satisfy the requirements of a "system" or a "series of systems" of the sort described in the definition of "telecommunications network".
[88] The locations of the poles, though conducive to the operation of a telecommunications network and recognised by Hutchison as such when it selected them as sites for the installation of its downlink facilities, were not selected in order to facilitate that operation. Instead, ETSA had erected poles at those locations as part of its electricity distribution business.
157 While there are a number of obvious differences in the factual circumstances and the legal question that arose in Hutchison compared with the present case, the case was concerned with the notion of the "use" of a telecommunications facility in the Telco Act. In that context, the High Court emphasised that the question is to be answered not by reference to the motive for the installation of the facility, but by reference to the function which the facility serves or was designed to serve. It is clear from the High Court's reasoning, reproduced above, that in determining the function that a facility is designed to serve, it is relevant to consider the intended use of the facility. In each of the above paragraphs, the relevant enquiry is directed to the intended use of the replacement stobie poles (applying the synonyms "intended for use" and "in order to"). Ultimately, the High Court concluded, as a question of fact, that ETSA had erected the poles not for use as part of a telecommunications network but for use as part of its electricity distribution business.
158 The ordinary meaning of the implicit phrases "to be used" or "will be used" in Item 6-1 of the Determination, and the reasoning of the High Court in Hutchison, support the conclusion that conditions (a) and (d) are to be construed as referring to the function which the proposed public payphone cabinet will serve or is designed to serve. In applying the Determination and answering that question, it is relevant to consider both the physical features and technical capability of the proposed public payphone cabinet and the intended use of the cabinet by the entity wishing to install and use it. For those reasons, I respectfully disagree with the conclusion of the primary judge that none of the conditions stated in Item 6-1 of the Determination "has anything to do with future intentions of the carrier" (see Reasons at [114] and [115]).